Dr Sara Ajaz v Homerton University Hospital NHS Foundation Trust
| Jurisdiction | UK Non-devolved |
| Judge | Judge Keith |
| Subject Matter | Not landmark |
| Court | Employment Appeal Tribunal |
| Published date | 24 November 2023 |
Judgment approved by the court for handing down Ajaz v Homerton Hospital
NHS Foundation Trust
© EAT 2023 Page 1 [2023] EAT 142
Neutral Citation Number: [2023] EAT 142 Case No: EA-2022-000447-AS
IN THE EMPLOYMENT APPEAL TRIBUNAL
7 Rolls Building
Fetter Lane, London
EC4A 1NL
Date: 24 November 2023
Before:
JUDGE KEITH
Between:
DR SARA AJAZ
Appellant
- and -
HOMERTON UNIVERSITY HOSPITAL
NHS FOUNDATION TRUST
Respondent
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Mr Stuart Brittenden, instructed by Rahman Lowe, for the Appellant
Ms Betsan Criddle KC, instructed by Hempsons, for the Respondent
Hearing date: 21 September 2023
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JUDGMENT
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Judgment approved by the court for handing down
Ajaz v Homerton University Hospital
NHS Foundation Trust
© EAT 2023 Page 2 [2023] EAT 142
SUMMARY
Practice and Procedure
The Employment Judge erred in concluding that rule 52 of the Employment Tribunals
(Constitution and Rules of Procedure) Regulations 2013 prevented the Appellant
from raising new claims of detriments pursuant to section 47B of the Employment
Rights Act 1996, (‘ERA’), after an Employment Judge had dismissed, on the
Appellant’s withdrawal, an earlier claim of different detriments, but based on the same
protected disclosures. The further claims alleging new detriments did not raise the
same, or substantially the same, complaints. The EJ’s analysis of whether issue
estoppel applied in the context of a summary judgment was not sufficient.
However, while the EJ was incorrect in her conclusions on the effect of rule 52, the ET
was correct in concluding that the new claims were an abuse of process, because they
attempted to relitigate the issue of the same protected disclosures, which the Appellant
had agreed were settled in a COT3 agreement. The terms of that agreement were not
void because of section 43J ERA. This was because the terms of the COT3 did not
preclude the Appellant from making protected disclosures or from instituting further
proceedings. Rather, they settled the previously disputed issue of whether the
Appellant had made protected disclosures. The EJ did not err in failing to consider
whether the Appellant was no longer bound by the terms of the COT3, in circumstances
where she had never claimed to have accepted repudiatory breaches of those terms.
Judgment approved by the court for handing down
Ajaz v Homerton University Hospital
NHS Foundation Trust
© EAT 2023 Page 3 [2023] EAT 142
JUDGE KEITH:
Introduction
1. This appeal raises the practical issue of the scope of rule 52 of the Employment
Tribunals (Constitution and Rules of Procedure) Regulations 2013, (‘the
ET Rules) and how that rule relates to the legal doctrines of ‘issue estoppel’ and
other aspects of ‘res judicata.’ The facts of the appeal are simple.
2. In 2017, the Appellant brought claims of detriments contrary to section 47B of
the Employment Rights Act 1996 (‘ERA’). After agreeing to settle her claims
under a COT3 agreement, she withdrew her claims, which an Employment
Judge dismissed. The Appellant remained, and remains, employed by the
Respondent.
3. The Appellant later presented further claims in May and September 2021.
These were also claims of detriments contrary to section 47B ERA, all said to
have taken place after the COT3, and one of which was an alleged breach of the
terms of the COT3. The Appellant alleged in her further claims that the new
detriments to which she was subjected were done on the ground that she had
made the same protected disclosures as in her first claim. The Respondent
defended the claims and applied for them to be struck out. An Employment
Judge agreed with the Respondent and struck out the claims, by reference to
rule 52 of the ET Rules, and in the alternative, as an abuse of process. The
Appellant contends that the EJ was wrong to do so, as otherwise, an employer
may dismiss an employee or subject them to a detriment on the grounds of
previous protected disclosures with impunity, because an employee can never
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